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Federal Government angling to restore protections for fish with proposed legislation

On February 6, 2018, the Federal Government introduced Bill C-68 which would restore protections to fish and their habitat removed by the 2012 amendments to the Fisheries Act. The proposed amendments are also intended to provide better certainty for the industry, safeguard the long-term sustainability of marine resources, and ensure that the Fisheries Act provides strong and meaningful protection for fish and their habitat.

Restoration of protections for fish and fish habitat

One of the key features of the proposed amendments is the restoration of the prohibition against harming all fish and fish habitat, which were protected under the Fisheries Act, prior to 2012. The 2012 amendments limited the scope of protections so that only fish and habitat related to a commercial, recreational or Aboriginal fishery were protected. The 2018 proposed amendments would also reintroduce prohibitions on the harmful alteration, disruption and destruction of fish habitat, frequently referred to as “HADD”, which includes the prohibition on “the death of fish by means other than fishing”.

The reintroduction of the prohibition on HADD has the potential to reestablish prior uncertainties regarding the determination of what constitutes HADD. Previously, HADD has been interpreted to include more fleeting or temporary impacts on fish and their habitat.

Increased certainty for the industry

Another significant feature of the proposed amendments is the creation of designated classes of projects that would always require ministerial permits, to be classified as “designated projects.” Designated projects are expected to be large scale projects that will be identified based on their potential impact on fish and fish habitat. Under the existing Act, authorizations are determined on a project-by-project basis. Through the establishment of the new designated project classification, Fisheries and Oceans Canada aims to provide greater certainty for stakeholders around processes and timelines. Projects that are not listed as designated projects will continue to be reviewed under the current practice of issuing letters of advice and ministerial authorizations.

In addition, Bill-68 proposes the development of codes of practice, developed in collaboration with stakeholders, Indigenous peoples, provinces and territories and environmental groups, which will serve as guidance documents for project proponents on how to avoid impacts on fish and fish habitat, and ensure compliance with the Act.

Long-term sustainability of marine resources

Bill C-68 would also require Fisheries and Oceans Canada to consider whether a proposed development project gives priority to the restoration of degraded fish habitats. The Federal Government proposes the introduction of a requirement to create and publish habitat restoration plans on a public registry following the designation of an area as ecologically significant and where habitat restoration is needed. The Minister will also be given the ability to create regulations related to the restoration of fish habitat and the rebuilding of fish stocks.

The proposed amendments include a new prohibition on harm to ecologically significant areas, while at the same time allowing the Minister to issue authorizations to carry out work in these areas, if satisfied that avoidance and mitigation measures may be implemented to achieve objectives for the restoration and protection of fish and fish habitat. The use of fish habitat banks, in particular, has been endorsed as a means for proponents to carry out a conservation project within the same area where it is proposing to carry out work that will impact fish habitat, thereby fulfilling its obligations under the new amendments.

Reconciliation with Indigenous peoples

The proposed amendments to the Fisheries Act are also intended to advance reconciliation with Indigenous peoples by increasing their participation in decision-making and management under the Act. This would include the consideration of traditional knowledge of Indigenous peoples with respect to decision-making under the Act and in support of the proposed changes to the Act, as well as the introduction of a modernized fish habitat protection program designed to enhance partnership opportunities with Indigenous communities for the conservation and protection of fish and fish habitat.

The announcement of Bill C-68, entitled “An Act to amend the Fisheries Act and other Acts in consequence”, followed a lengthy period of review and public consultation that began in 2016. Following on Bill C-68, the Minister of Environment introduced Bill C-69 on February 8, 2018, which proposes a major overhaul of the federal environmental impact assessment process and would result in the replacement of the National Energy Board and amendment to the Navigation Protection Act.